Replacing Guardianship / Conservatorship

The PDF in which this article appears can be found in Bifocal Vol. 43 Issue 2.

What would a replacement for guardianship or conservatorship look like? Society has an obligation to protect members of our community who are unable to protect themselves from harm. Protection should only happen when it is necessary to protect a person from harm. One definition of when a person is “in need of protection” is when a person is unable to “to receive and evaluate information or make or communicate decisions, even with the use of appropriate supportive services, technological assistance, or supported decision making.”  Involuntary interventions that occur without meeting this standard are legal and human rights abuses. There are three primary areas that people often need help, health care decisions, personal care decisions and financial management. Help is most often provided by family and concerned friends in all of these areas.

Health Care Decisions

Nearly all states have statutes legally empowering immediate family and increasingly interested friends to make health care decisions for a person that is unable to give informed consent. Research shows that even in states without those laws, most health care providers accept consent from immediate family. Except for emergencies, medical care requires informed consent. Medical care without consent is a battery of the person. Laws in lost states leave it up to the treating physician(s) to determine if a person is able to give informed consent for medical care. If the physician is concerned about the patient’s ability to give consent, the physicians seek consent from someone named in writing or from family or friends. These options can replace guardianship for health care decisions for nearly all adults. These alternatives will fail when the person has no identifiable family or friends willing to assist, when there is conflict between family members, or when the person making the choice appears to be committing abuse. It is possible for laws to be structured so that state actors can select someone to have legal authority to consent to health care under those circumstances.

Personal Care Decisions

Personal care decisions are choices about things like what to wear, what to eat, who to spend time with, or what entertainment to view. Personal care decisions are the easiest for persons to make independently, or with support from family, friends, or caregivers. These choices often have a low risk of harm (it makes little difference if a person wears the blue shirt or the red shirt.) For the most part, these decisions do not require legal authority. The choices simply need to be made to keep the person happy, safe, and with appropriate nutrition. Where there are challenges in personal care decisions, support by family and friends will most often replace guardianship. There is an increasing concern about limiting contact or visitation. The wishes of the person should always be honored. Adults often choose to continue unhealthy social contact. People are increasingly being advised to leave specific written directions on contact or visitation in the event of a decline in capacity, to replace the use of guardianship to resolve concerns about contact or visitation.

Living Arrangement

Decisions on living arrangements, start a cross over from a personal decision to a legal decision because there are often money and property rights involved. Property is bought and sold, leases are signed, contracts are involved, and the question of capacity to enter into those legal arrangements raises legal challenges. Most often these choices are made with help and support from family and friends. Powers of attorney, authorized signers on financial accounts, and trusts are planning tools that can replace guardianship. When those options are not available, laws can be created to allow courts to issue limited protective orders, to approve leases, sales, or purchases of property, or approve occupancy or admissions agreements, and are limited in scope to just that one issue, with oversight by the court and accountability to the court.

Financial Decisions

Difficulty with managing money, paying bills, making deposits, avoiding fraud and exploitation is an area that has no statutory defaults like health care decision making. A large part of our legal system is structured around creating, and protecting private property rights, including real and personal property rights (including money.) Powers of attorney, authorized signers on financial accounts and trusts are all tools for replacing guardianship or conservatorship on financial matters. Despite years of encouraging adults to plan for managing financial affairs in the event of incapacity, not all do, and sometimes the plans that have been made fail. Social Security and some other government benefits allow for appointment of a representative payee, and charge that person with managing and accounting for the benefits. Representative payee is a simple replacement for a guardian or conservator especially if the only income is from Social Security or other federal benefits. We also encourage people to set as much of their financial life on auto pilot as they can, using direct deposit for income, and automatic payment for reoccurring bills. Direct deposit and automatic payment should be monitored to assure that all income is received and that the bills that are paid, are correct and paid on time. Family and friends can easily monitor and provide oversight by simply having online access to view account statements, something that merchants and financial institutions are increasingly willing to provide with consent from the account owner. There are also financial management professionals who can provide help with managing money. These range from formal business models such as daily money managers, business agents, and accountants, to less formal arrangements operated by local non-profit organizations. The hurdle for professional managers is cost. There are also risks of abuse and exploitation. Many of these arrangements have little or no built-in oversight and accountability.

A Model for Limited Protective Arrangements

There is a model for limited protective orders in Article 5 of the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act (UGCOPAA.) Drafted by the Uniform Law Commission with input from a wide-ranging panel of contributors. UGCOPAA Article 5 provides robust recommendations for limited protective orders that are not the appointment of a guardian or conservator but authorize limited actions that are necessary, that the person is unable at the time to do without assistance. Limited orders can be used for things like buying or selling a home, signing a lease, accessing financial records for benefits applications, appointing someone to make health care decisions, making changes on life insurance, or claiming a pension. These court orders provide a legal basis to authorize consent to a specific issue, account to the court that it is done, and then the court’s involvement ends. It is critically important that these issues be fully considered by the Court, and that the wishes of the person be considered to the extent it can be ascertained.

There are weaknesses with limited orders, they are limited in scope and very few states have adopted Article 5 of UGCOPAA, and only a few states have other statutes or caselaw that make it easy for Courts to craft limited arrangements. Laws need to be changed, and advocates and Courts need to be urged to consider replacements before considering guardianship.

The Role of Family and Friends

The replacements require the presence of involved trusted family or friends who are ready, willing, and able to support the person with managing their affairs. The principles of supported decision making provide a model for how help can be provided. A lack of trusted family, friends, or trusted professionals is a challenge for persons who are aging solo. There have been pilot projects to encourage development of trusted relationships to replace guardianship for solo adults. The replacements can fail if the supporters disagree on decisions. Conflicts between family members commonly leads to guardianship and conservatorship. Eldercaring Coordination is a model for dispute resolution that seeks to resolve the conflict. Guardianship should never be a replacement for family counseling.

Abuse and Exploitation

It is important to remember that abuse is not caused by the legal framework or lack of legal framework. Abuse and exploitation are caused by bad acts that harm a vulnerable adult. Abuse happens in all legal settings. Abuse happens with family and friends, and agents on powers of attorney. Abuse happens when trustees of trusts, guardians and conservators breach the fiduciary duty entrusted to them. Abuse, neglect, and exploitation does occur in guardianship and all the replacements that are discussed. All of these can be a way of protecting a person who is unable to protect themselves, and none of them is a guarantee that someone will not harm the person. As one family guardian put it, guardianship is not a guarantee of safety, it is a tool we use to try to help a person, but it is not a guarantee that the person will not be harmed.

Conclusion

Successful planning and legal alternatives can replace many guardianships. In many states, laws and practices need to be changed to allow more alternatives. All of these can fail. No one tool is a guarantee of safety. Criminals have used every tool in the box to abuse and exploit. Everyone needs to be urged to plan for incapacity; we are all only one health care event away from needing help meeting our basic needs and protecting ourselves from harm. Currently, we fail to plan more often than plans fail. Guardianship becomes the replacement for failure to plan, or for plans that have failed. It is time to turn that on its head and replace guardianship.